Bond v. United States

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOND v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 09–1227. Argued February 22, 2011—Decided June 16, 2011
When petitioner Bond discovered that her close friend was pregnant by
Bond’s husband, she began harassing the woman. The woman suf
fered a minor burn after Bond put caustic substances on objects the
woman was likely to touch. Bond was indicted for violating 18
U. S. C. §229, which forbids knowing possession or use, for nonpeace
ful purposes, of a chemical that “can cause death, temporary inca
pacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8),
and which is part of a federal Act implementing a chemical weapons
treaty ratified by the United States. The District Court denied
Bond’s motion to dismiss the §229 charges on the ground that the
statute exceeded Congress’ constitutional authority to enact. She en
tered a conditional guilty plea, reserving the right to appeal the rul
ing on the statute’s validity. She did just that, renewing her Tenth
Amendment claim. The Third Circuit, however, accepted the Gov
ernment’s position that she lacked standing. The Government has
since changed its view on Bond’s standing.
Held: Bond has standing to challenge the federal statute on grounds
that the measure interferes with the powers reserved to States.
Pp. 3–14.
(a) The Third Circuit relied on a single sentence in Tennessee Elec.
Power Co. v. TVA, 306 U. S. 118. Pp. 3–8.
(1) The Court has disapproved of Tennessee Electric as authorita
tive for purposes of Article III’s case-or-controversy requirement. See
Association of Data Processing Service Organizations, Inc. v. Camp,
397 U. S. 150, 152–154. Here, Article III’s standing requirement had
no bearing on Bond’s capacity to assert defenses in the District Court.
And Article III’s prerequisites are met with regard to her standing to
appeal. Pp. 3–5.
2 BOND v. UNITED STATES
Syllabus
(2) Tennessee Electric is also irrelevant with respect to prudential
standing rules. There, the Court declined to reach the merits where
private power companies sought to enjoin the federally chartered
Tennessee Valley Authority (TVA) from producing and selling electric
power, claiming that the statute creating the TVA exceeded the Na
tional Government’s powers in violation of the Tenth Amendment. In
doing so, the Court repeatedly stated that the problem with the
power companies’ suit was a lack of “standing” or a “cause of action,”
treating those concepts as interchangeable. E.g., 306 U. S., at 139.
The question whether a plaintiff states a claim for relief typically
“goes to the merits” of a case, however, not to the dispute’s justiciabil
ity, Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 92, and
conflation of the two concepts can cause confusion. This happened
with Tennessee Electric’s Tenth Amendment discussion. The state
ment on which the Third Circuit relied here, see 306 U. S., at 144,
should be read to refer to the absence of a cause of action for injury
caused by economic competition. To the extent the statement might
instead be read to suggest a private party does not have standing to
raise a Tenth Amendment issue, it is inconsistent with this Court’s
later precedents and should be deemed neither controlling nor in
structive on the issue of standing as that term is now defined and ap
plied. Pp. 5–8.
(b) Amicus, appointed to defend the judgment, contends that for
Bond to argue the National Government has interfered with state
sovereignty in violation of the Tenth Amendment is to assert only a
State’s legal rights and interests. But in arguing that the Govern
ment has acted in excess of the authority that federalism defines,
Bond seeks to vindicate her own constitutional interests. Pp. 8–14.
(1) Federalism has more than one dynamic. In allocating powers
between the States and National Government, federalism “ ‘secures
to citizens the liberties that derive from the diffusion of sovereign
power,’ ” New York v. United States, 505 U. S. 144, 181. It enables
States to enact positive law in response to the initiative of those who
seek a voice in shaping the destiny of their own times, and it protects
the liberty of all persons within a State by ensuring that law enacted
in excess of delegated governmental power cannot direct or control
their actions. See Gregory v. Ashcroft, 501 U. S. 452, 458. Federal
ism’s limitations are not therefore a matter of rights belonging only
to the States. In a proper case, a litigant may challenge a law as en
acted in contravention of federalism, just as injured individuals may
challenge actions that transgress, e.g., separation-of-powers limita
tions, see, e.g., INS v. Chadha, 462 U. S. 919. The claim need not de
pend on the vicarious assertion of a State’s constitutional interests,
even if those interests are also implicated. Pp. 8–12.
Cite as: 564 U. S. ____ (2011) 3
Syllabus
(2) The Government errs in contending that Bond should be
permitted to assert only that Congress could not enact the challenged
statute under its enumerated powers but that standing should be de
nied if she argues that the statute interferes with state sovereignty.
Here, Bond asserts that the public policy of the Pennsylvania, en
acted in its capacity as sovereign, has been displaced by that of the
National Government. The law to which she is subject, the prosecu
tion she seeks to counter, and the punishment she must face might
not have come about had the matter been left for Pennsylvania to de
cide. There is no support for the Government’s proposed distinction
between different federalism arguments for purposes of prudential
standing rules. The principles of limited national powers and state
sovereignty are intertwined. Impermissible interference with state
sovereignty is not within the National Government’s enumerated
powers, and action exceeding the National Government’s enumerated
powers undermines the States’ sovereign interests. Individuals seek
ing to challenge such measures are subject to Article III and pruden
tial standing rules applicable to all litigants and claims, but here,
where the litigant is a party to an otherwise justiciable case or con
troversy, she is not forbidden to object that her injury results from
disregard of the federal structure of the Government. Pp. 12–14.
(c) The Court expresses no view on the merits of Bond’s challenge
to the statute’s validity. P. 14.
581 F. 3d 128, reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court. GINS-
BURG, J., filed
a concurring opinion, in which BREYER, J., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1227
_________________
CAROL ANNE BOND, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 16, 2011]
JUSTICE KENNEDY delivered the opinion of the Court.
This case presents the question whether a person in­
dicted for violating a federal statute has standing to chal­
lenge its validity on grounds that, by enacting it, Congress
exceeded its powers under the Constitution, thus intrud­
ing upon the sovereignty and authority of the States.
The indicted defendant, petitioner here, sought to ar­
gue the invalidity of the statute. She relied on the Tenth
Amendment, and, by extension, on the premise that Con­
gress exceeded its powers by enacting it in contravention
of basic federalism principles. The statute, 18 U. S. C.
§229, was enacted to comply with a treaty; but petitioner
contends that, at least in the present instance, the treaty
cannot be the source of congressional power to regulate or
prohibit her conduct.
The Court of Appeals held that because a State was not
a party to the federal criminal proceeding, petitioner had
no standing to challenge the statute as an infringement
upon the powers reserved to the States. Having concluded
that petitioner does have standing to challenge the federal
statute on these grounds, this Court now reverses that
2 BOND v. UNITED STATES
Opinion of the Court
determination. The merits of petitioner’s challenge to the
statute’s validity are to be considered, in the first instance,
by the Court of Appeals on remand and are not addressed
in this opinion.
I
This case arises from a bitter personal dispute, leading
to the criminal acts charged here. Petitioner Carol Anne
Bond lived outside Philadelphia, Pennsylvania. After dis­
covering that her close friend was pregnant and that
the father was Bond’s husband, Bond sought revenge.
Bond subjected the woman to a campaign of harassing
telephone calls and letters, acts that resulted in a crimi­
nal conviction on a minor state charge. Bond persisted in
her hostile acts, placing caustic substances on objects the
woman was likely to touch, including her mailbox, car
door handle, and front doorknob. Bond’s victim suffered a
minor burn on her hand and contacted federal investiga­
tors, who identified Bond as the perpetrator.
Bond was indicted in the United States District Court
for the Eastern District of Pennsylvania for, among other
offenses, two counts of violating §229. Section 229 forbids
knowing possession or use of any chemical that “can cause
death, temporary incapacitation or permanent harm to
humans or animals” where not intended for a “peaceful
purpose.” §§229(a); 229F(1); (7); (8). The statute was en­
acted as part of the Chemical Weapons Convention
Implementation Act of 1998, 112 Stat. 2681–856, 22
U. S. C. §6701 et seq.; 18 U. S. C. §229 et seq. The Act
implements provisions of the Convention on the Prohibi­
tion of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction, a treaty
the United States ratified in 1997.
In the District Court, Bond moved to dismiss the §229
charges, contending the statute was beyond Congress’
constitutional authority to enact. The District Court
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
denied the motion. Bond entered a conditional plea of
guilty, reserving the right to appeal the ruling on the
validity of the statute. She was sentenced to six years in
prison.
In the Court of Appeals for the Third Circuit, Bond
renewed her challenge to the statute, citing, among other
authorities, the Tenth Amendment to the Constitution.
The Court of Appeals asked for supplemental briefs on the
question whether Bond had standing to raise the Tenth
Amendment as a ground for invalidating a federal statute
in the absence of a State’s participation in the proceedings.
In its supplemental brief in the Court of Appeals, the
Government took the position that Bond did not have
standing. The Court of Appeals agreed. 581 F. 3d 128(2009).
When Bond sought certiorari, the Government advised
this Court that it had changed its position and that, in its
view, Bond does have standing to challenge the constitu­
tionality of §229 on Tenth Amendment grounds. See Brief
for United States (filed July 9, 2010). The Court granted
certiorari, 562 U. S. ___ (2010), and appointed an amicus
curiae to defend the judgment of the Court of Appeals.
Stephen McAllister, a member of the bar of this Court,
filed an amicus brief and presented an oral argument that
have been of considerable assistance to the Court.
II
To conclude that petitioner lacks standing to challenge
a federal statute on grounds that the measure interferes
with the powers reserved to States, the Court of Appeals
relied on a single sentence from this Court’s opinion in
Tennessee Elec. Power Co. v. TVA, 306 U. S. 118 (1939).
See 581 F. 3d, at 136–138. As the Court of Appeals noted
here, other Courts of Appeals have taken a similar ap­
proach. E.g., United States v. Hacker, 565 F.3d 522, 525–
527 (CA8 2009); Oregon v. Legal Servs. Corp., 552 F. 3d
4 BOND v. UNITED STATES
Opinion of the Court
965, 971–972 (CA9 2009); Brooklyn Legal Servs. Corp. v.
Legal Servs. Corp., 462 F. 3d 219, 234–235 (CA2 2006);
Medeiros v. Vincent, 431 F. 3d 25, 33–36 (CA1 2005);
United States v. Parker, 362 F. 3d 1279, 1284–1285 (CA10
2004). That approach is in tension, if not conflict, with
decisions of some other Courts of Appeals. See Gillespie v.
Indianapolis, 185 F. 3d 693, 700–704 (CA7 1999); Metro
lina Family Practice Group, P. A. v. Sullivan, 767 F. Supp.
1314 (WDNC 1989), aff’d 929 F. 2d 693 (CA4 1991); At
lanta Gas Light Co. v. United States Dept. of Energy, 666
F. 2d 1359, 1368, n. 16 (CA11 1982); see also United States
v. Johnson, 632 F. 3d 912, 918–921 (CA5 2011) (reserving
issue); Lomont v. O’Neill, 285 F. 3d 9, 14, n. 5 (CADC
2002) (same); Nance v. EPA, 645 F. 2d 701, 716 (CA9
1981) (same).
Tennessee Electric is the appropriate place to begin. It
should be clear that Tennessee Electric does not cast doubt
on Bond’s standing for purposes of Article III’s case-or­
controversy requirement. This Court long ago disap­
proved of the case as authoritative respecting Article III
limitations. Association of Data Processing Service Or
ganizations, Inc. v. Camp, 397 U. S. 150, 152–154 (1970).
In the instant case, moreover, it is apparent—and in
fact conceded not only by the Government but also by
amicus—that Article III poses no barrier. One who seeks
to initiate or continue proceedings in federal court must
demonstrate, among other requirements, both standing to
obtain the relief requested, see Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561 (1992), and, in addition,
an “ongoing interest in the dispute” on the part of the
opposing party that is sufficient to establish “concrete
adverseness.” Camreta v. Greene, 563 U. S. ___, ___ (2011)
(slip op., at 5) (internal quotation marks omitted). When
those conditions are met, Article III does not restrict the
opposing party’s ability to object to relief being sought at
its expense. The requirement of Article III standing thus
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
had no bearing upon Bond’s capacity to assert defenses in
the District Court. As for Bond’s standing to appeal, it is
clear Article III’s prerequisites are met. Bond’s challenge
to her conviction and sentence “satisfies the case-or­
controversy requirement, because the incarceration . . .
constitutes a concrete injury, caused by the conviction and
redressable by invalidation of the conviction.” Spencer v.
Kemna, 523 U. S. 1, 7 (1998).
To resolve the case, this Court must consider next
whether Tennessee Electric is irrelevant with respect to
prudential rules of standing as well. The question in
Tennessee Electric was whether a group of private power
companies could bring suit to enjoin the federally char­
tered Tennessee Valley Authority (TVA) from producing
and selling electric power. It was conceded that competi­
tion from the TVA would “inflict substantial damage” upon
the power companies. 306 U. S., at 137. According to the
companies, the federal statute authorizing the creation
and operation of the TVA was invalid because, among
other reasons, it exceeded the powers of the National
Government in violation of the Tenth Amendment.
Declining to reach the merits, the Court concluded the
power companies’ lawsuit should be dismissed. It ex­
plained that the suit was premised on the principle that a
person threatened with injury by conduct “which, but for
statutory authority for its performance, would be a viola­
tion of his legal rights” could request an injunction from a
court of equity and by this means test the validity of the
statute. Ibid. But the Court concluded that the TVA,
even if it were shorn of congressional statutory authority,
had done nothing more than compete as a supplier of
electricity. Id., at 138. And since state law did not pur­
port to grant any of the power companies a monopoly,
there was no basis for a suit in which the TVA might be
forced to invoke its congressional authorization. Id., at
138–143.
6 BOND v. UNITED STATES
Opinion of the Court
In that part of its analysis, and throughout its opinion,
the Tennessee Electric Court stated that the problem with
the power companies’ suit was a lack of “standing” or a
“cause of action.” It treated those concepts as inter­
changeable. E.g., id., at 139 (no “standing” because no
“legal cause of complaint”); id., at 139–140 (no “standing”
without “a cause of action or a right to sue”); id., at 142(“no standing,” no “right to sue for an injunction”); id.,
at 144 (no Tenth Amendment “standing” and no Ninth
Amendment “cause of action” for same reasons); see also
Bellia, Article III and the Cause of Action, 89 Iowa L. Rev.
777, 826–830 (2004).
Even though decisions since Tennessee Electric have
been careful to use the terms “cause of action” and “stand­
ing” with more precision, the distinct concepts can be
difficult to keep separate. If, for instance, the person
alleging injury is remote from the zone of interests a stat­
ute protects, whether there is a legal injury at all and
whether the particular litigant is one who may assert it
can involve similar inquiries. Steel Co. v. Citizens for
Better Environment, 523 U. S. 83, 96–97, and n. 2 (1998)
(noting that statutory standing and the existence of a
cause of action are “closely connected” and “sometimes
identical” questions).
Still, the question whether a plaintiff states a claim for
relief “goes to the merits” in the typical case, not the justi­
ciability of a dispute, id., at 92, and conflation of the two
concepts can cause confusion. This is the case with the
Tenth Amendment discussion in Tennessee Electric. The
Tennessee Electric Court noted that “[a] distinct ground
upon which standing to maintain the suit is said to rest is
that the acts of the Authority cannot be upheld without
permitting federal regulation of purely local matters re­
served to the states or the people by the Tenth Amend­
ment.” 306 U. S., at 143. The Court rejected the argu­
ment, however, concluding the Tenth Amendment did not
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
give one business a right to keep another from compet-
ing. Id., at 144. (“The sale of government property in
competition with others is not a violation of the Tenth
Amendment”).
The Court then added the sentence upon which the
Court of Appeals relied in the instant case, the sentence
that has been the source of disagreement among Courts of
Appeals:
“As we have seen there is no objection to the Author­
ity’s operations by the states, and, if this were not so,
the appellants, absent the states or their officers, have
no standing in this suit to raise any question under
the amendment.” Ibid.The quoted statement was in the context of a decision
which held that business competitors had no legal injury,
and the word standing can be interpreted in that sense.
On this reading, the statement reiterated an earlier point.
The statement explained that the States in which the TVA
operated exempted it from their public utilities regula­
tions; and that even if the States had not done so and the
TVA had violated those regulations, the regulations were
for the States to enforce. See id., at 141–142. They con­
ferred no private right of action on business competitors.
This reading is consistent with the Tennessee Electric
Court’s use of the term “standing” elsewhere in its opinion
to refer to the existence of a state-law cause of action. A
holding that state utilities regulations did not supply a
cause of action against a competitor is of no relevance to
the instant case, and we need not explore all of its implica­
tions. See also Data Processing, 397 U. S., at 157–158
(cause of action under the Administrative Procedure Act, 5
U. S. C. §702, permits suit based on injury from business
competition).
Yet the quoted statement also could be read to refer to
standing in the sense of whether the power companies
8 BOND v. UNITED STATES
Opinion of the Court
were the proper litigants to raise a Tenth Amendment is­
sue. To the extent that might have been the intention of
the Tennessee Electric Court, it is, for reasons to be ex­
plained, inconsistent with our later precedents. The sen­
tence from Tennessee Electric that we have quoted and
discussed should be deemed neither controlling nor in­
structive on the issue of standing as that term is now
defined and applied.
III
Amicus contends that federal courts should not adjudi­
cate a claim like Bond’s because of the prudential rule that
a party “generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth v. Seldin, 422
U. S. 490, 499, 500 (1975); see also Kowalski v. Tesmer,
543 U. S. 125, 129–130 (2004). In amicus’ view, to argue
that the National Government has interfered with state
sovereignty in violation of the Tenth Amendment is to
assert the legal rights and interests of States and States
alone. That, however, is not so. As explained below, Bond
seeks to vindicate her own constitutional interests. The
individual, in a proper case, can assert injury from gov­
ernmental action taken in excess of the authority that
federalism defines. Her rights in this regard do not belong
to a State.
A
The federal system rests on what might at first seem a
counterintuitive insight, that “freedom is enhanced by the
creation of two governments, not one.” Alden v. Maine,
527 U. S. 706, 758 (1999). The Framers concluded that
allocation of powers between the National Government
and the States enhances freedom, first by protecting the
integrity of the governments themselves, and second by
protecting the people, from whom all governmental powers
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
are derived.
Federalism has more than one dynamic. It is true that
the federal structure serves to grant and delimit the pre­
rogatives and responsibilities of the States and the Na­
tional Government vis-à-vis one another. The allocation
of powers in our federal system preserves the integrity,
dignity, and residual sovereignty of the States. The fed­
eral balance is, in part, an end in itself, to ensure that
States function as political entities in their own right.
But that is not its exclusive sphere of operation. Feder­
alism is more than an exercise in setting the boundary
between different institutions of government for their own
integrity. “State sovereignty is not just an end in itself:
‘Rather, federalism secures to citizens the liberties that
derive from the diffusion of sovereign power.’ ” New York v.
United States, 505 U. S. 144, 181 (1992) (quoting Coleman
v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J.,
dissenting)).
Some of these liberties are of a political character. The
federal structure allows local policies “more sensitive to
the diverse needs of a heterogeneous society,” permits
“innovation and experimentation,” enables greater citizen
“involvement in democratic processes,” and makes gov­
ernment “more responsive by putting the States in com­
petition for a mobile citizenry.” Gregory v. Ashcroft, 501
U. S. 452, 458 (1991). Federalism secures the freedom of
the individual. It allows States to respond, through the
enactment of positive law, to the initiative of those who
seek a voice in shaping the destiny of their own times
without having to rely solely upon the political processes
that control a remote central power. True, of course, these
objects cannot be vindicated by the Judiciary in the ab­
sence of a proper case or controversy; but the individual
liberty secured by federalism is not simply derivative of
the rights of the States.
Federalism also protects the liberty of all persons within
10 BOND v. UNITED STATES
Opinion of the Court
a State by ensuring that laws enacted in excess of dele­
gated governmental power cannot direct or control their
actions. See ibid. By denying any one government com­
plete jurisdiction over all the concerns of public life, feder­
alism protects the liberty of the individual from arbitrary
power. When government acts in excess of its lawful
powers, that liberty is at stake.
The limitations that federalism entails are not therefore
a matter of rights belonging only to the States. States are
not the sole intended beneficiaries of federalism. See New
York, supra, at 181. An individual has a direct interest in
objecting to laws that upset the constitutional balance
between the National Government and the States when
the enforcement of those laws causes injury that is con­
crete, particular, and redressable. Fidelity to principles of
federalism is not for the States alone to vindicate.
The recognition of an injured person’s standing to object
to a violation of a constitutional principle that allocates
power within government is illustrated, in an analogous
context, by cases in which individuals sustain discrete,
justiciable injury from actions that transgress separation­
of-powers limitations. Separation-of-powers principles are
intended, in part, to protect each branch of government
from incursion by the others. Yet the dynamic between
and among the branches is not the only object of the Con­
stitution’s concern. The structural principles secured by
the separation of powers protect the individual as well.
In the precedents of this Court, the claims of individu­
als—not of Government departments—have been the
principal source of judicial decisions concerning separation
of powers and checks and balances. For example, the re­
quirement that a bill enacted by Congress be presented
to the President for signature before it can become law
gives the President a check over Congress’ exercise of
legislative power. See U. S. Const., Art. I, §7. Yet indi­
viduals, too, are protected by the operations of separation
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
of powers and checks and balances; and they are not dis­
abled from relying on those principles in otherwise justici­
able cases and controversies. In INS v. Chadha, 462 U. S.
919 (1983), it was an individual who successfully chal­
lenged the so-called legislative veto—a procedure that
Congress used in an attempt to invalidate an executive
determination without presenting the measure to the
President. The procedure diminished the role of the Ex­
ecutive, but the challenger sought to protect not the
prerogatives of the Presidency as such but rather his
own right to avoid deportation under an invalid order.
Chadha’s challenge was sustained. A cardinal principle of
separation of powers was vindicated at the insistence of an
individual, indeed one who was not a citizen of the United
States but who still was a person whose liberty was at
risk.
Chadha is not unique in this respect. Compare Clinton
v. City of New York, 524 U. S. 417, 433–436 (1998) (injured
parties have standing to challenge Presidential line-item
veto) with Raines v. Byrd, 521 U. S. 811, 829–830 (1997)
(Congress Members do not); see also, e.g., Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U. S. ___ (2010); Plaut v. Spendthrift Farm, Inc., 514 U. S.
211 (1995); Bowsher v. Synar, 478 U. S. 714 (1986); North
ern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U. S. 50 (1982); Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579 (1952); A. L. A. Schechter Poultry Corp. v.
United States, 295 U. S. 495 (1935). If the constitutional
structure of our Government that protects individual
liberty is compromised, individuals who suffer otherwise
justiciable injury may object.
Just as it is appropriate for an individual, in a proper
case, to invoke separation-of-powers or checks-and­
balances constraints, so too may a litigant, in a proper
case, challenge a law as enacted in contravention of consti­
tutional principles of federalism. That claim need not
12 BOND v. UNITED STATES
Opinion of the Court
depend on the vicarious assertion of a State’s constitu­
tional interests, even if a State’s constitutional interests
are also implicated.
B
In this regard it is necessary to address a misconception
in the position the Government now urges this Court to
adopt. As noted, the Government agrees that petitioner
has standing to challenge the validity of §229. That con­
cession, however, depends on describing petitioner’s claim
in a narrow way. The Government contends petitioner
asserts only that Congress could not enact the challenged
statute under its enumerated powers. Were she to argue,
the Government insists, that the statute “interferes with a
specific aspect of state sovereignty,” either instead of or in
addition to her enumerated powers contention, the Court
should deny her standing. Brief for United States 18 (filed
Dec. 3, 2010).
The premise that petitioner does or should avoid making
an “interference-with-sovereignty” argument is flawed.
Id., at 33. Here she asserts, for example, that the conduct
with which she is charged is “local in nature” and “should
be left to local authorities to prosecute” and that congres­
sional regulation of that conduct “signals a massive and
unjustifiable expansion of federal law enforcement into
state-regulated domain.” Record in No. 2:07–cr–00528–
JG–1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the
Commonwealth of Pennsylvania, enacted in its capacity as
sovereign, has been displaced by that of the National
Government. The law to which petitioner is subject, the
prosecution she seeks to counter, and the punishment she
must face might not have come about if the matter were
left for the Commonwealth of Pennsylvania to decide.
Indeed, petitioner argues that under Pennsylvania law the
expected maximum term of imprisonment she could have
received for the same conduct was barely more than a
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
third of her federal sentence.
There is no basis to support the Government’s pro­
posed distinction between different federalism arguments
for purposes of prudential standing rules. The princi-
ples of limited national powers and state sovereignty are
intertwined. While neither originates in the Tenth Amend­
ment, both are expressed by it. Impermissible interfer­
ence with state sovereignty is not within the enumerated
powers of the National Government, see New York, 505
U. S., at 155–159, and action that exceeds the National
Government’s enumerated powers undermines the sover­
eign interests of States. See United States v. Lopez, 514
U. S. 549, 564 (1995). The unconstitutional action can
cause concomitant injury to persons in individual cases.
An individual who challenges federal action on these
grounds is, of course, subject to the Article III require­
ments, as well as prudential rules, applicable to all liti­
gants and claims. Individuals have “no standing to com­
plain simply that their Government is violating the law.”
Allen v. Wright, 468 U. S. 737, 755 (1984). It is not
enough that a litigant “suffers in some indefinite way in
common with people generally.” Frothingham v. Mellon,
262 U. S. 447, 488 (1923) (decided with Massachusetts v.
Mellon). If, in connection with the claim being asserted, a
litigant who commences suit fails to show actual or immi­
nent harm that is concrete and particular, fairly traceable
to the conduct complained of, and likely to be redressed by
a favorable decision, the Federal Judiciary cannot hear the
claim. Lujan, 504 U. S., at 560–561. These requirements
must be satisfied before an individual may assert a consti­
tutional claim; and in some instances, the result may be
that a State is the only entity capable of demonstrating
the requisite injury.
In this case, however, where the litigant is a party to an
otherwise justiciable case or controversy, she is not forbid­
den to object that her injury results from disregard of the
14 BOND v. UNITED STATES
Opinion of the Court
federal structure of our Government. Whether the Tenth
Amendment is regarded as simply a “ ‘truism,’ ” New York,
supra, at 156 (quoting United States v. Darby, 312 U. S.
100, 124 (1941)), or whether it has independent force of its
own, the result here is the same.
* * *
There is no basis in precedent or principle to deny peti­
tioner’s standing to raise her claims. The ultimate issue of
the statute’s validity turns in part on whether the law can
be deemed “necessary and proper for carrying into Execu­
tion” the President’s Article II, §2 Treaty Power, see U. S.
Const., Art. I, §8, cl. 18. This Court expresses no view on
the merits of that argument. It can be addressed by the
Court of Appeals on remand.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 564 U. S. ____ (2011) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1227
_________________
CAROL ANNE BOND, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 16, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
concurring.
I join the Court’s opinion and write separately to make
the following observation. Bond, like any other defendant,
has a personal right not to be convicted under a constitu
tionally invalid law. See Fallon, As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L. Rev.
1321, 1331–1333 (2000); Monaghan, Overbreadth, 1981
Sup. Ct. Rev. 1, 3. See also North Carolina v. Pearce, 395
U. S. 711, 739 (1969) (Black, J., concurring in part and
dissenting in part) (“Due process . . . is a guarantee that a
man should be tried and convicted only in accordance with
valid laws of the land.”).
In this case, Bond argues that the statute under which
she was charged, 18 U. S. C. §229, exceeds Congress’
enumerated powers and violates the Tenth Amendment.
Other defendants might assert that a law exceeds Con
gress’ power because it violates the Ex Post Facto Clause,
or the Establishment Clause, or the Due Process Clause.
Whatever the claim, success on the merits would require
reversal of the conviction. “An offence created by [an
unconstitutional law],” the Court has held, “is not a
crime.” Ex parte Siebold, 100 U. S. 371, 376 (1880). “A
conviction under [such a law] is not merely erroneous, but
is illegal and void, and cannot be a legal cause of impris
2 BOND v. UNITED STATES
GINSBURG, J., concurring
onment.” Id., at 376–377. If a law is invalid as applied to
the criminal defendant’s conduct, the defendant is entitled
to go free.
For this reason, a court has no “prudential” license to
decline to consider whether the statute under which the
defendant has been charged lacks constitutional applica
tion to her conduct. And that is so even where the consti
tutional provision that would render the conviction void is
directed at protecting a party not before the Court. Our
decisions concerning criminal laws infected with discrimi
nation are illustrative. The Court must entertain the
objection—and reverse the conviction—even if the right to
equal treatment resides in someone other than the de
fendant. See Eisenstadt v. Baird, 405 U. S. 438, 452–455
(1972) (reversing conviction for distributing contraceptives
because the law banning distribution violated the recipi
ent’s right to equal protection); cf. Craig v. Boren, 429
U. S. 190, 192, 210, and n. 24 (1976) (law penalizing sale
of beer to males but not females aged 18 to 20 could not
be enforced against vendor). See also Grayned v. City of
Rockford, 408 U. S. 104, 107, n. 2 (1972); Welsh v. United
States, 398 U. S. 333, 361–362 (1970) (Harlan, J., concur
ring in result) (reversal required even if, going forward,
Congress would cure the unequal treatment by extending
rather than invalidating the criminal proscription).
In short, a law “beyond the power of Congress,” for any
reason, is “no law at all.” Nigro v. United States, 276 U. S.
332, 341 (1928). The validity of Bond’s conviction depends
upon whether the Constitution permits Congress to enact
§229. Her claim that it does not must be considered and
decided on the merits.